Pursuant to G.S. 143-755, 160D-108, 160D-108.1, and Article 10 of 160D provisions to secure a permit choice, vested right, site-specific vesting plan, or development agreement shall be as follows:

(a)

Permit choice. In accordance with G.S. 143-755, if a development regulation is amended between the time a completed development permit application was submitted and a permit decision is made or if an applicable regulation is amended after the application is wrongfully denied or after an illegal condition is imposed, as determined in a proceeding challenging the permit denial or the condition imposed, the applicant may choose which adopted version of the development regulation will apply. The applicant is not required to await the outcome of the amendment prior to acting on the application. However, any provision of the applicant's chosen version determined to be illegal for any reason shall not be enforced upon the applicant without the written consent of the applicant.

(1)

If a completed permit application is placed on hold at the request of the applicant for a period of six (6) consecutive months or more, or the applicant fails to respond to comments or provide additional information reasonably requested for a period of six (6) consecutive months or more, the application review is discontinued and the development regulations in effect at the time permit processing is resumed apply to the application.

(2)

Aggrieved parties may apply to the appropriate division of the General Court of Justice for an order compelling compliance with this section.

(b)

Vested rights. The establishment of a vested right under this subsection does not preclude vesting under one (1) or more subsections or vesting by application of common law principles. A vested right, once established as provided for in this subsection or by common law, precludes any action that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the development regulation(s), except where a change in state or federal law mandating local government enforcement occurs after the development application is submitted that has a fundamental and retroactive effect on the development or use.

(1)

Process to claim a vested right. A person claiming a statutory or common law vested right may submit information to substantiate that claim to the zoning administrator who shall make an initial determination as to the existence of the vested right. The decision of the zoning administrator may be appealed under section 21-331. Alternatively, a person claiming a vested right may bring an original civil action to superior court.

(2)

Duration of vesting. Upon issuance of a development approval, the statutory vesting granted in section 21-11(b)(1) for a development project is effective upon filing of the application in accordance with section 21-11(a), for so long as the permit remains valid pursuant to law. Unless otherwise specified in this chapter all development approvals expire one (1) year after issuance unless work has substantially commenced. For the purposes of this section, a permit is issued either in the ordinary course of business by planning staff or as a court directive.

Unless a longer vesting period is provided herein, the statutory vesting granted by this section, once established, expires for an uncompleted development project or a non-conforming use of property if development work or property use is intentionally and voluntarily discontinued for a period of twenty-four (24) consecutive months. The twenty-four (24) month discontinuance period is automatically tolled during the pendency of any BOA or court proceeding regarding the validity of a development permit, the use of the property, the existence of the statutory vesting period granted by this section, or litigation involving the project or property that is the subject of the vesting.

(3)

Multiple permits for development project. Subject to section 21-11(b)(2), where multiple development approvals are required to complete a development project, the development permit applicant may choose the version of each development regulation applicable to the project upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within eighteen (18) months of the date following the approval of an initial permit. For purposes of the vesting protections of this subsection, an erosion and sedimentation control permit is not an initial development permit.

(4)

Phased development plan. A phased development is vested for the entire development with the regulations in place at the time a plan approval is granted for the initial phase of the development. A right which has been vested as provided for in this subsection remains vested for a period of seven (7) years from the time a plan approval is granted for the initial phase of the development. For the purposes of this section, a phased development means:

a.

Contains at least twenty-five (25) acres;

b.

Submitted for development approval to occur in more than one (1) phase; and

c.

Subject to a master development plan with committed elements showing the type and intensity of each phase.

(5)

Continuing review. Following issuance of a development approval, planning staff may make subsequent inspections and reviews to ensure compliance with the applicable development regulations in effect at the time of the original application.

(6)

Amendments. Amendments in development regulations are not applicable without the written consent of the owner with regard to any of the following:

a.

Buildings or uses of buildings or land for which a development permit application has been submitted and subsequently issued in accordance with section 21-11(a).

b.

Subdivisions of land for which a development permit application authorizing the subdivision has been submitted and subsequently issued in accordance with section 21-11(a).

c.

A site-specific vesting plan pursuant to section 21-11(c).

d.

A phased development pursuant to section 21-11(b)(4).

e.

A vested right established by the terms of a development agreement authorized by Article 10 of G.S. 160D.

(7)

Miscellaneous provisions. The vested rights granted by this subsection run with the land except for the use of land for outdoor advertising governed by G.S. 136-131.1 and G.S. 136-131.2. Nothing in this subsection precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law.

(c)

Site-specific vesting plans.

(1)

Site-specific vesting plan. In accordance with G.S. 160D-108.1, a site-specific vesting plan means a plan submitted pursuant to this subsection describing with reasonable certainty the type and intensity of use for a specific parcel(s). The plan may be any one (1) or more of the following plans or approvals: a planned development subdivision, a subdivision plat, a site plan, a special use permit, or a conditional zoning district. Information required for each type of plan or approval shall be as defined for the specific development approval indicated in this or other applicable chapters of the Rowan County Code of Ordinances. Plans which fail to describe with reasonable certainty the type and intensity of use for a specified parcel(s) may not constitute a site-specific vesting plan. A variance shall not constitute a site-specific vesting plan and approval of a site-specific vesting plan with the condition that a variance be obtained shall not confer a vested right unless and until the necessary variance is obtained.

(2)

Establishment of vested right. A vested right is established with respect to any property upon the valid approval, or conditional approval, of a site-specific vesting plan as provided in this subsection. Such a vested right confers upon the landowner the right to undertake and complete the development and use of the property under the terms and conditions of the site-specific vesting plan, including any amendments thereto.

(3)

Approval and amendment of plans. If a site-specific vesting plan is associated with a development requiring administrative approval, a legislative hearing and notice in accordance with section 21-315 (1)(a)—(c) shall be provided to consider the vesting plan once the development plan(s) has been reviewed and approved by staff. Site specific vesting plans for all other specified plans or approval types herein shall be subject to the same notice and hearing type for the underlying development approval and should be combined into a single notification for each type identified in section 21-315 (1)(a)—(c).

The board of commissioners may approve a site specific vesting plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety, and welfare. Landowners will not be required to waive their vested right as a condition of development approval. A site-specific vesting plan shall be deemed approved upon the effective date of the board's decision approving the plan or another date as determined by the board. An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the planning director if considered a minor change in accordance with section 21-58(f)(1). All other changes must be reviewed and approved in the same manner as the original approval.

(4)

Continuing review. Following approval or conditional approval of a site-specific vesting plan, the board may elect to require subsequent reviews and approvals by the planning department to ensure compliance with the terms and conditions of the original approval, provided that such reviews and approvals are not inconsistent with the original approval. The board may, pursuant to G.S. 160D-403(f), revoke the original approval for failure to comply with applicable terms and conditions of the original approval or applicable regulation.

(5)

Duration and termination of vested right.

a.

A vested right for a site-specific vesting plan remains vested for a default period of two (2) years or up to five (5) years if warranted by the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions, or other considerations as determined by the board in accordance with this subsection. This vesting shall not be extended by any amendments or modifications to a site-specific vesting plan unless expressly provided by the board.

b.

Upon issuance of a building permit, the provisions of G.S. 160D-1111 and G.S. 160D-1115 apply, except that the permit does not expire and shall not be revoked because of the running of time while a vested right under this section is outstanding.

c.

A right vested as provided in this subsection terminates at the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed.

(6)

Exceptions. The provisions of this section are subject to the following:

a.

A vested right, once established, precludes any zoning action that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved site specific vesting plan, except when any of the following conditions are present:

1.

The written consent of the affected landowner.

2.

Findings made, after notice and a quasi-judicial hearing, that natural or man-made hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the approved vested right.

3.

Findings made, after notice and a quasi-judicial hearing, that the landowner or their agent intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the board.

4.

The enactment or promulgation of a state or federal law or regulation that precludes development as contemplated in the approved site-specific vesting plan, in which case the board may modify the affected provisions, upon a finding that the change in state or federal law has a fundamental effect on the plan, after notice and a quasi-judicial hearing.

5.

The affected landowner receives compensation in accordance with G.S. 160D-108.1(f)(1)(c).

b.

The establishment of a vested right under this section does not preclude the application of subsequent overlay zoning or ordinance change that impose additional requirements that do not affect the allowable type or intensity of use. Otherwise applicable new regulations become effective with respect to property that is subject to a site-specific vesting plan upon the expiration or termination of the vested rights period provided for in this subsection.

c.

Notwithstanding any provision of this section, the establishment of a vested right under this subsection shall not preclude, change, or impair the authority to adopt and enforce standards regulating nonconforming situations or uses.

(7)

Miscellaneous provisions.

a.

A vested right obtained under this subsection is not a personal right but shall attach to and run with the applicable property.

b.

Nothing in this subsection shall preclude judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this subsection shall be construed to alter the existing common law.

(d)

Development agreements. Properties subject to an approved development agreement with the board of commissioners consistent with Article 10 of G.S. 160D may have a vesting period which exceed the duration identified in this subsection.

(Ord. of 1-19-98, § I; Amend. of 4-21-14; Amend. of 9-6-16; Amend. of 6-21-21; Amend. of 11-15-21; Amend. of 4-18-22)